Judge appears skeptical over throwing out Prop. 8 ruling because of jurist's sexuality

Same-sex marriage opponents say ruling should be overturned because gay judge did not disclose his long-term relationship; many ethics experts disagree. A decision on the case could come as soon as Tuesday.

Reporting from San Francisco — Can a gay judge rule on same-sex marriage?

Legal scholars and judges have debated for decades where to draw the line when it comes to potential personal conflicts of jurists, whether over race, gender or religion.

On Monday, the question focused on the federal judge who last year threw out California's ban on same-sex marriage. Judge Vaughn R. Walker is gay but did not publicly disclose it until he retired from the bench. In April, he told reporters that he was in a 10-year relationship. Sponsors of Proposition 8 are now using the revelation in an effort to have his landmark ruling thrown out.

But the judge reviewing the case appeared to express some skepticism during a three-hour hearing Monday in San Francisco. He said he may rule as early as Tuesday.

Chief U.S. District Judge James Ware, an African American, likened the case to challenges of judges based on race and gender, which have generally failed in civil rights cases. Ware noted, however, that while a jurist's race and gender are usually obvious, litigants may not know whether a judge is gay. He said the motion against Walker has "occupied" him for months.

"This is the first case where same-sex relationship is the subject for disqualifying a judge, so it is important that we treat it seriously and get it right," Ware said.

Ware did not disclose how he would rule, but many of his comments suggested that he was unlikely to conclude that Walker should have stepped aside when the federal lawsuit against Proposition 8 was randomly assigned to him.

The judge noted that there was no evidence Walker intended to marry his partner. Walker has not publicly discussed whether he has ever considered marriage. After he retired, Walker told reporters about his relationship and said he never considered stepping down from the case because he is gay.

"You can be in a long-term relationship without being in it for the purposes of marriage, right?" Ware asked Charles J. Cooper, the lawyer for the sponsors of Proposition 8.

Cooper conceded that was true, but said Walker should have removed himself because he stood in "the exact same shoes" as the gay and lesbian couples who filed the suit. Like them, Walker was in a committed same-sex relationship, Cooper said.

In a sign of the sensitive nature of the conflict-of-interest allegation, Ware told the packed courtroom that he had married a same-sex couple during the brief period when such marriages were legal in California in 2008. Cooper did not raise any objections.

Ware's comments underscore those of several legal experts who have told The Times they were highly doubtful that Walker's ruling would be overturned because of his relationship.

"I don't think he needed to disclose that any more than a non-gay judge would," Northwestern University Law professor Steven Lubet, who wrote a book on judicial conduct and ethics, said in a recent interview.

Federal law says jurists can be disqualified from hearing cases because of financial interests, however slight, strong personal friendships with litigants, or a personal bias or prejudice, among other factors.

The issue of whether Walker had a conflict has sparked a flood of written arguments to the court and posts to a legal ethics blog. Most legal ethicists say Walker should not have been disqualified from hearing the case, although some also say that he should have disclosed his relationship.

California Atty. Gen. Kamala Harris, who, like her predecessor, has refused to defend Proposition 8, argued that courts have rejected "every single one of the attempts to disqualify judges on the basis of their race, gender or religious affiliation."

Lawyers say motions to disqualify a judge are becoming more common, particularly when one side believes it is losing. These motions can serve to put a jurist on notice that his or her actions will be scrutinized closely, as well as to remove a judge known for a tendency to rule in a certain direction.

One of the most publicized recusal cases involved U.S. Supreme Court Justice Antonin Scalia, who was asked to remove himself in 2004 from a legal dispute between environmentalists and then-Vice President Dick Cheney.

Cheney and Scalia were friends and went duck hunting together while the case was being considered. But Scalia refused to step down, saying Cheney was being sued as a government official.

Attorneys for the same-sex couples challenging the marriage ban have called the motion against Walker "outrageous," and even some legal ethicists who disagreed with Walker's ruling described the disqualification motion as unfortunate.

Aware of the criticism, Cooper began his argument by telling the court he was approaching "awkwardly and not in any way welcoming arguing this motion."